Negligent Supervision of Children

Can parents or grandparents be liable for negligently supervising children in their care?

In Connolly (Litigation guardian of) v. Riopelle, [2010] O.J. No. 5798 (S.C.J.), the eight year old plaintiff was injured in an automobile accident. The defendant driver brought a third party claim against the boy’s grandfather, alleging that the grandfather was negligent in his supervision of the child and this caused or contributed to the accident. The child was visiting his grandparents’ home and was left outside to play alone when the accident occurred.

The grandfather brought a motion to strike the claim. He alleged that the child had been taught appropriate safety rules, was generally well behaved and did not require a greater level of vigilance than other children his age.

The motion was dismissed.

The Court held that is was open to the trier of fact to conclude that the grandfather ought to have looked out from time to time to ensure the child was adhering to the rules that were set, and there was an absence of evidence as to the accepted standard of care of other caregivers in the neighbourhood where the accident occurred.

Justice James concluded that the question of negligent supervision was better assessed in a trial setting.

Employed Lawyers E&O

Attorneys in private practice buy errors and omissions insurance. Such is coverage for suits brought by clients for malpractice.



When attorney goes to work for a private firm the need for errors and omissions insurance drops to almost zero - an employer can not sue an employee for malpractice.



I said almost zero.



Employed lawyers sometimes continue to handle small matters for friends and family. They may help employees with wills or other small legal matters. The lawyer is exposed to a lawsuit if those "off-the books" issues result in a lawsuit.



Employed attorneys should realize that most employers do not buy coverage for them for malpractice.



There is an insurance policy designed for this situation - called Employed Lawyer E&O.



Talk with your insurance advisor about employed lawyer errors and omissions for more info.

ADA 2.0 Packs a Sharper Edge for Workers' Comp. Self-Insurers

The landmark Americans with Disabilities Act (ADA) of 1990 substantively changed workplace rules in ways that required employers to adapt a variety of hiring and return-to-work practices in order to maintain compliance.

Now 20 years later, the ADA has been amended and the implications for workers’ compensation self-insurers are significant. At issue is that ADA 2.0 will impose several new restrictions on how return-to-work programs can be structured.

The new final regulations are expected to be released this spring, but in anticipation of this expanded regulatory reach some self-insured employers have already felt the sting.

Over the past the year, the Equal Employment Opportunity Commission (EEOC) has been quietly adding nearly 300 investigators to enforce ADA requirements. Most recently, they have been targeting larger companies (generally self-insured) to determine if their return-to-work programs are ADA 2.0 compliant.

This is a fundamental change in EEOC’s historical approach of investigating claims made by specific employees. In other words, the EEOC is now essentially conducting on-site “audits” to determine possible ADA 2.0 violations.

Companies are already starting to pay big fines as part of negotiated settlements as the EEOC flexes its muscles in advance of the release of final regulations – proactive enforcement, indeed.

For example, late last year Sears settled an EEOC complaint for $6 million in connection with its employee absence policy that was deemed to improperty accommodate disabled workers. United Airlines recently paid more than $600,000 for a policy that refused the allow returning workers with disabilities to work reduced hour shifts.

With the EEOC investigative staffing ramp up, it’s clear that audit and enforcement efforts will pick up significantly this year and likely entangle many workers’ compensation self-insurers with carefully structured return-to-work programs.

The good news is that there are ways that employers can make sure they are ADA 2.0 compliant and we’ll report on that in the coming months.

In the meantime, the march of big government continues.

Thoughts on umbrella coverage

Kiplinger, a personal finance magazine, has an interesting article on why people with income of over $100,000 or assets over $1 million should purchase umbrella coverage.

Umbrella coverage is coverage above your regular insurance. For example, you might have an auto policy and a homeowner's policy that each have a limit of $300,000. An umbrella policy would kick in if the damages exceed that amount.

The article states that umbrella insurance will cover your legal fees if you get sued. In most cases that is incorrect. Generally, your primary insurance (such as auto or homeowner's) will cover your legal fees, although there are some rare cases when primary insurance does not apply and umbrella insurance does apply. There are also some primary policies in which legal fees deplete the coverage limit.